Kansas lawmakers’ debate on abortion amendment was often embarrassingly off-point
All day Tuesday, Kansas lawmakers heard testimony on a proposed amendment to the state constitution that would make it easier for them to regulate abortion as they see fit.
There are serious arguments on both sides. Republicans say they just want to go back to the status quo that existed before last April’s Kansas Supreme Court decision made placing any limit on abortion a lot harder. So much harder, in fact, that even the most modest limit, like parental notification, might not survive.
For Democrats, the proposed amendment is arsenic with a twist of ricin. Because in their eyes, last year’s finding that the right to an abortion is protected under the state consitution is their only safeguard against the opposite fear. Their worry is that if the U.S. Supreme Court overturns Roe v. Wade, then the Republican majority in the Kansas Legislature could ban abortion entirely, even in cases of rape and incest.
Unfortunately, we didn’t hear much that was serious from lawmakers on either side of the aisle on Tuesday. Instead, most of the commentary from legislators was not just boilerplate but off-point boilerplate.
Republicans kept arguing that the amendment itself isn’t a ban, which is true but meaningless, since the concern is that it would open the door to a ban. (“Can you so kindly show me where it is a ban?” Wichita’s Republican state Rep. Renee Erickson asked a pro-choice speaker, not that kindly.)
Democratic Rep. Nancy Lusk, of Overland Park, noted that there’s no consensus among people of faith about when life begins — also true but irrelevant — and suggested that we follow the excellent example of heavily Catholic Ireland. (Maybe we should, but protesters yelling, “Get your rosaries off our ovaries” weren’t exactly affirming their Catholic identity in 2018, when the country voted overwhelmingly to liberalize abortion law.)
Democrats kept arguing that if the amendment passed — yes votes from two-thirds of the lawmakers in both the Kansas House and Senate would put the measure on either the August or November ballot — women wouldn’t be able to get an abortion even if they’d die without one. No one would be for that, Republican lawmakers answered. The college student whom a speaker for Catholics for Choice vividly remembers using knitting needles to self-abort in her dorm before Roe v. Wade was decided in 1973 — exactly 47 years ago on Jan. 22 — would these days order some abortion-inducing pills online.
The back-and-forth was more a volley of rocks than of reasoned arguments.
Wichita Democratic Rep. John Carmichael began the day by insulting Elizabeth Kirk, a legal scholar who’d carefully explained the view that the standard of judicial review adopted in the Hodes case recently decided in Kansas, is “one so rigorous it is virtually certain to unsettle existing law, resulting in extended, expensive litigation and a more permissive legal landscape for abortion than has ever existed under federal law.”
(Even under the rigid “strict scrutiny” standard of Roe — which was lowered considerably under 1992’s Planned Parenthood v. Casey decision — the state could still restrict or even proscribe abortion after viability. Hodes goes further than Roe, Kirk argued, because it spells out no such limit after viability.)
“You tell us that you are a constitutional law scholar and that you taught law somewhere,” Carmichael told Kirk, then asked her to cite where in the world she got the idea that the “strict scrutiny” standard is so tough that it’s been known colloquially among lawyers as “strict in theory, fatal in fact.”
“I’ve practiced law in this state for over 40 years,” he said, “and I’ve never heard the disparagement of the strict scrutiny test.” When she cited the 1972 Harvard Law Review as her source, he said that wasn’t touched on at his alma mater, KU Law, “so I guess we’re deficient.” No, but you do have to wonder how his 40 years in law hadn’t taught him never to ask any witness a question to which he doesn’t know the answer.
When Kirk accidentally knocked over the podium, he mockingly told her, “Good job!” And to a young conservative lobbyist for the Family Policy Alliance who testified later he said, “Thank you for your wisdom.”
The some 125 Kansans who came to testify on a matter they all care about deeply deserved better.
They included a medical student who talked about the pregnant woman she’d treated at a clinic whose husband beat her because he didn’t believe she’d been raped by her uncle. It’s a woman like that, she said, who’d be most hurt by a ban. A perinatologist made the point that even laws that take into account the health of the mother guarantee nothing: Do such protections kick in when there’s a 50% chance that she could die? What about when there’s a 10% chance?
Life and death are what those on both sides of this debate were talking about, while some lawmakers seemed to instead see the purpose of the amendment as “restricting the ability of the court” or even drumming up support to make judges more accountable to voters.
We’ve said before that the voters should get to decide on this amendment, just as they should get to weigh in on Missouri’s near-ban on abortion. But if they do — and putting it on the November ballot would make more sense than putting it on August’s because turnout would be higher — we can’t claim to know what Kansas lawmakers would do if their ability to regulate abortion were fully restored.